Per M.V. Ravindran :

This miscellaneous application No. C/EH/1470/08 is filed by the applicant for out of turn hearing of appeal No. C/729/08.

2. The Ld. Counsel appearing on behalf of the applicant submits that the Appeal No. C/729/08 is to be heard out of turn, on the ground that the classification of the product imported "Vertical Automated Storage and Retrieval System (AS/RS) from M/s. Kardex Systems Ltd. were classified in the Bill of Entry dt. 1.8.2007 as falling under CTH 8707900 instead of 84289090 due to mis-classification, the products are classified as parts of automobile. It is his submission that the application being passed by them for the reason that subsequent consignment of the very same item which are been imported would get classified under this heading.

3. Ld. SDR on the other hand would submits that there is no case for out of turn hearing. It is his submission that classification is done as per the bill of entry as filed by the applicant. There is no case for out of turn hearing.

4. After considering the submissions made by both sides, I find that the issue needs to be resolved as to whether the product which were imported by the applicant will be covered under 8707900 or 84289090. Hence considering the responsible submission made by the Ld. Counsel that the applicant has imported the very same products earlier and subsequently and is going to do so, I find that the applicant has made out a case for out of turn hearing. In view of this, the application for out of turn hearing is allowed and the appeal itself is taken up for disposal.

5. The Ld. Counsel brings to my notice the provisions of Section 149 and Section 154 of the Customs Act, 1962 and submits that these two sections allow one for amendment of documents and also for correction of clerical error. It is his submission that while filing bill of entry dt. 1.8.2007 there was an inadvertent mistake and imported goods got classified as 8707900 instead of 84289090. He submits that on noticing, the error the appellant approached adjudicating authority for rectification of mistake under section 149 and/or 154 of the Customs Act, 1962, and the same was rejected by the authorities vide letter dt.1.2.2008, he draws my attention to the said letter. He brings to my notice the decision of the Tribunal in an identical situation the case of the Taksal Pharma Pvt. Ltd. Vs. Commissioner of Customs, Airport, Mumbai in Appeal No. C/478 to 480/2007 [2008 (88) RLT 106 (CESTAT-Mum.)].

6. The Ld. SDR submits that the assessed bill of entry is now final. There is no appeal filed by the appellant against the said assessed bill of entry. It is his submission the provisions of Section 149 and Section154 of the Customs Act, 1962 may not be applicable to this case. It is the submission that once bill of entry is assessed and the goods are cleared, the remedy lies by way appeal against the said assessment and if it is not challenged, it has attained finality as has been laid down by the Hon'ble Supreme Court in the case of Flock India Ltd. [2000 (40) RLT 131 (SC)=2000 (120) ELT 285 (SC) and M/s. Priya Blue Industries Ltd. [2004 (64) RLT 321 (SC)=2004 (172) ELT 145 (SC)]. It is his submission that wrong mentioning of the Chapter Heading number is not the error, which can be corrected under Section 149 and Section 154 of the Customs Act, 1962.

7. Considered the submissions made at length by both sides and perused the records. While rejecting the appeal filed by the appellant the Ld. Commissioner (Appeal) has come to the following conclusion :-

"It is seen that in this case the Bill of Entry was assessed and cleared under R.M.S. There being no dispute at the time of assessment, there was no call for assessing authority to issue a speaking order in respect of the assessment. The discrepancy was apparently noticed by the appellants only subsequently and by which time the assessments had been cleared and finalized. The remedy for the appellants at the point of time was to file an appeal